For many people, the marketplace is too often a site of intense humiliation. This Article aims to assist legal practitioners, judges, lawmakers, and scholars in understanding what market humiliation is, how it operates, and what can be done to curtail it. This is a particularly timely—even urgent—task due to a pair of 2022 developments at the Supreme Court that carry an enhanced threat to dignified market participation. In one, Cummings v. Premier Rehab Keller, the Court denied damages for emotional harm from a deaf and legally blind woman who was refused suitable accommodation by a private medical provider. The other, 303 Creative v. Elenis, is still pending. However, the Court’s willingness to hear it signals the possibility of allowing businesses to refuse to serve LGBTQ clients. While conventional analyses would classify such incidents as discrimination, with victims’ relief mainly depending on the group to which they belong, this Article takes a novel approach. It studies what market assaults targeting people’s identities have in common—regardless of the identity attacked—revealing three features most relevant to devising an adequate and much-needed legal response.
First, it shows that humiliating incidents in the marketplace start with a shared and blameworthy behavioral profile, which this Article delineates. Second, it explains how when such a behavioral pattern exists, the rise of the particular emotion of humiliation is highly predictable, making claims of emotional harm far more credible than currently treated. It also brings to law scientific data showing how uniquely intense and long-lasting this emotion is and how it spreads from individuals to communities, suggesting jurists should stop minimizing the emotional harm created by humiliating acts. Third, it clarifies that feeling humiliated carries consequences much more severe and provable than what is currently assumed due to treating humiliation solely as an emotion. Those outcomes include significant common health problems that sometimes can lead to death.
In light of these findings, the Article proposes a solution called market citizenship—the idea that market participation must entail a unique set of rights and duties that should be defined and enforced by the state. It originally suggests doing so not only via expanded nondiscrimination laws but also through private law. People attacked in the marketplace due to their identity should have the right to full, uninterrupted, stable, and humiliation-free market citizenship. The businesses that humiliate them must have a corresponding duty—inherent in their market citizenship—to show them normal levels of respect.
56 Loy. L.A. L. Rev. 565
Available at: https://digitalcommons.lmu.edu/llr/vol56/iss2/4